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Kistur Chand Tewari and ors. Vs. Babu Rajani Kanta Mukherjea and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal137
AppellantKistur Chand Tewari and ors.
RespondentBabu Rajani Kanta Mukherjea and anr.
Excerpt:
- .....effect. we are further of opinion that earn chandra was at all material times the karta of the joint family and as such the manager of the joint family business. we also find that he also held powers of attorney from the persons whose names he signed on the three promissory notes and also had authority to borrow. we also hold that the loan was taken from the respondent for the family business and was actually applied to meet the liabilities of the same. we further hold that the family business was conducted at different places and at different times under different names, that a business was actually carried under the name and style of joy kissen ramprosad and the said business was a joint family business. these findings we arrived at1 on the evidence as it stands and for this suit.....
Judgment:

R.C. Mitter, J.

1. This appeal is in a suit which was filed by the plaintiff-respondent on 15th April 1936, to recover Rs. 9500 on two promissory notes, both dated 17th August 1932 (Ex. 5 and Ex. 6). The first note was for Rs. 7101 and the second for Rs. 505/4. There is no dispute about the consideration, it being admitted before us that the plaintiff did really advance Rupees 7101 on 5th August 1928, on a promissory note (Ex. 3) and the two promissory notes, Ex. 5 and Ex. 6 are renewals.

2. To follow the points in controversy tha following genealogical tree is necessary.

SHAMALEAM TEWABI

|

------------------------

| | |

Ramlall Jalooram Joy Kissen

| | |

Gopiram Harsukh |

| | |

| -------- |

Jaharnull | | |

| Srilal Damodar |

| (deft.21)(deft.22) |

-------------|

|

------------------------------------------------

| | | | |

Ramprosad Ram Chandra Kistur Chand Jaskaran |

| (deft. 1) (deft. 8) (deft. 12) |

------------- | | |

| | | | |

Harnarayan Sewbaratab | | |

(deft. 13) (deft. 14) | -------------------- |

| | | | | |

----------- |Pushal Suganchand Arjun |

| |(deft.9 (deft. (deft. |

----------------- | minor) 10 minor) 11 minor) |

| | | |

| | |--------------- |

Bhramarlal Ramesh | |

(deft. 15 (deft. 16 ------------------------------- |

minor) minor) | | | |

Mohanlal Lakhinarayan Muralidhar Prahlad |

(deft. 2) (deft. 3) (deft. 4) (deft. 5)|

| |

Gourishankar (deft. 6 minor) |

|

|

------------|

|

---------------

| |

Ramdhan Chhagmull

| |

------------ Ramnarayan

| (deft. 20)

--------------------------------------

| | |

Premsukh Narayan Gajanand alias Ghatulal

(deft. 17) (deft. 18) (deft. 19)

3. All the three promissory notes - Ex. 3, Ex. 5 and Ex. 6 - were signed by Ramchandra (defendant 1) and it was he who received from the respondent Rs. 7101 at the time when Ex. 3 was executed. Ex. 3 was signed by him for self and as constituted attorney of Ramprosad, Kisturchand, Premsukh and Ramnarayan. Interest was paid from time to time, and the fact of payment endorsed on the promissory note. The first payment was made by Sewnarayan and the remaining payments by Ram Chandra. The last but one payment made on 15th April 1931 was endorsed as follows:

Ram Chandra Tewari for self and as constituted attorney for the partners of the firm Joy Kissen Ram Prosad by Ram Chandra Tewari.' Exs. 5 and 6 were executed by Earn Chandra for self and as constituted attorney of Harnarayan, Sew-narayan (Ram Prosad being then dead), Kisturehand and Premsukh and all of them are described as partners of the firm Joy Kissen Ram Prosad. Part payments of interest were made on different occasions and some of the endorsements of payment were signed by Earn Chandra simpliciter and some by him as 'constituted attorney of the partners of the firm of Joy Kissen Eamprosad.' The defendants to the suit are the persons indicated in the genealogical tree. The appellants do not dispute before us, although issues were raised by them in the lower Court, the fact that the defendants are members o a joint Hindu family governed by the Mitakshara School and the family was and is a family of traders. On the evidence we also find to the same effect. We are further of opinion that Earn Chandra was at all material times the karta of the joint family and as such the manager of the joint family business. We also find that he also held powers of attorney from the persons whose names he signed on the three promissory notes and also had authority to borrow. We also hold that the loan was taken from the respondent for the family business and was actually applied to meet the liabilities of the same. We further hold that the family business was conducted at different places and at different times under different names, that a business was actually carried under the name and style of Joy Kissen Ramprosad and the said business was a joint family business. These findings we arrived at1 on the evidence as it stands and for this suit only. As we agree with the findings of fact arrived at by the learned Subordinate Judge on the aforesaid points it will be sufficient if we indicate briefly our reasons for arriving at the aforesaid findings.

4. There is no dispute that three brothers Ramlall, Jalooram and Joy Kissen were members of a joint Mitakshara family. They acquired a tea estate called the Sourani Estate and had other business. The joint business was carried on under the name and style of Ramlall Jalooram. The said estate is still joint and the business is still carried on in the same name and style and all the members of the family - all the defendants - have still interest in the said estate and business. Ex. 11 (II-6), the application to the Land Registration Deputy Collector for registration and mutation of names; Ex. 12 (II-9) the deposition of Ramchandra; Ex. 4 (II-13), a letter written on the printed form of the 'firm Eamlall Jalooram' to the plaintiff; the recital deeds in Exs. 2 and 18 (11-16-18); Ex. 16 (II-20), an application by Earn Narayan Tewari to the Subordinate Judge in Title Suit No. 7 of 1934; an application by all the members of the family in the same suit Ex. 15 (II-25), and Ex. 13 (II-21), an affidavit of Ramchandra, conclusively establish the said fact that the family was joint and there is a joint family business. The oral evidence adduced by the defendants to prove that groups of defendants have separated and are carrying on separate business is worthless. None of the defendants has come forward to deny the said facts and other material facts. That Ramchandra was the karta there cannot be any doubt. He did everything, took proceedings in Courts, gave instructions to pleaders, executed documents on behalf of the family, raised money for the business, etc. The respondent was the pleader of the family for a number of years and knew the condition of the family and its affairs. He was in a position to know. He has deposed, and in our judgment, truthfully, and we accept his evidence in its entirety.

5. Ramchandra was also the constituted attorney of some other members of the family. The defendants were called upon by the plaintiff to produce the powers of attorney, but none has been produced. The plaintiff has produced certified copies of extracts of two of them, of Ramprosad and of Premsukh, from the registration office. The defendants are residents of Rajputana and the plaintiff could not naturally trace all the powers bf attorney. Ramchandra's deposition, Ex. 14 (11-23), shows that he held powers of attorney from other co-sharers, besides the two mentioned above. 'Firm Joy Kissen Ramprosad' was not a fictitious name. All the joint properties at Kurseong were kept in that name (Demand Register of Municipality, Ex. 1-II, 38-39). Though the word 'firm' is not mentioned in the said exhibit, the meaning of the entry is plain. Some of the properties so kept in the Demand Register was sold by Ramchandra on behalf of all the members of the family, in the name of the firm Ramlall Jalooram (Ex. 2, II-16 ; Ex. 18-II-18). The respondent pledged his oath on the point and no member of the family-none of the defendants - has come forward to give a denial. We accordingly hold that the joint family also traded in that name. We further hold that the joint family also traded in the name of Ramchandra Mohanlal. We need not repeat the reasons given by the learned Subordinate Judge which we adopt.

6. There can be no doubt that the loan was taken in 1928 from the plaintiff for meeting the liabilities of the family. The plaintiff himself knew that the family was in want on account of the refractioners of the tenants of the Soureni estate. The sum advanced by the plaintiff was on the same date applied in paying a family debt standing in the name of Ramchandra Mohanlal, Ex. 19 (11-10). On these findings all the defendants are liable, unless the plaintiff's claim based on the original consideration is barred by time. As we construe the plaint, the plaintiff based his claim also on the original consideration and he made averments in the plaint (paras. 2 and 3) which if established (and we have found them established) would, make all the defendants liable. This brings us to the question of limitation. The loan was taken by the karta Ramchandra on 5th August 1928. The promissory note was executed by him on that date on his own behalf and on behalf of Ramprosad, Kisturchand, Premsukh and Earn Narayan. The promissory note was not signed by Ramchandra describing himself as karta. He did not at the time of its execution indicate on the face of it that the loan was being taken for the family business or family purpose. On 15th April 1931, Rs. 484-8-0 was paid and the payment was endorsed on the promissory note by Ramchandra on 'behalf of' the partners of the firm Joy Kissen Ramprosad. The debt was acknowledged by Ramchandra acting in the same capacity within three years of this, for on 17th August 1932, he executed the promissory notes Ex. 5 and Ex. 6. On 10th August 1935, within three years of this acknowledgment, he made payments towards interest endorsing the payment in the same capacity. These acknowledgments and payments prima facie save the suit. But Mr. Bose contends that the plaintiff cannot get the benefit of Section 21, Sub-section (3), Clause (b), Limitation Act, as the promissory note Ex. 3, dated 5th August 1928, does not on the face of it show that the loan was incurred on behalf of the joint family. He says that that is the meaning of words 'as such' which occur in that Section. We do not think that that is the meaning of the said words. If the fact that the loan has been incurred on behalf of the family can be established on the evidence, Section 21(3)(b) would, in our judgment, be, attracted, if the acknowledgment or part, payments of the principal or interest had been made and endorsed by the karta. A loan may be taken even without any, document by an individual, an undivided Hindu family or by a karta of such a family, and if Mr. Bose's contention be correct Section 21(3)(b) would have no application to such cases. This cannot be the intention of the Legislature. When a loan has been taken and is evidenced by a document oral evidence is not excluded to show what the purpose of the loan was and especially when the document is silent on the point. By such oral evidence the terms of the document are not varied.

7. Section 21, Limitation Act, only extends the definition of 'an authorized agent' mentioned in Sections 19 and 20. Section 21(3)(b), the sub-section with which we are concerneds means that an acknowledgment signed by or on behalf of the karta of a joint Hindu-family or a payment endorsed by him or by an agent on his behalf would in certain circumstances extend the period of limitation against the whole family. That subsection lays down two conditions in order that acts of a member of a joint Hindu family specified in Sections 19 and 20 may extend the period of limitation against all the members. These conditions are : (i) that the loan must have been incurred by or on, behalf of the joint family, and (ii) that the, specified acts must be the acts not of any member of the family but must be the act of the varta.

8. A joint Mitakshara family has to burden a loan in some circumstances, although the loan was not incurred and was not intended to have been incurred for the family. The case of a joint Mitakshara family with the father as its head affords an example. He borrows money for his own personal needs - not for immoral purposes - to help a friend in financial difficulties or a separated kinsman or a cognate or a relation by marriage. The creditor is told the purpose of the loan. For this commitment of the father, his sons and his grandsons after his death become liable. A written acknowledgment by the father who is the karta or a part payment endorsed and signed by him would not keep alive the liability of his sons and grandsons imposed by law and extend the period of limitation. Such an act of the father would keep the loan alive against him only. In our judgment this illustration brings out the import of the words 'as such' occurring in the opening line of Section 21(3)(b).

9. We have already held that the loan from the plaintiff was incurred by Earn Chandra, the karta, for and on behalf of the family, and as the acknowledgments and payments were made by him within time, the suit is not barred by limitation. All the points raised before us by the appellants accordingly fail. There is however a slight defect in the form of the decree. Ramchandra and the persons on whose behalf he signed the promissory notes Ex. 3, Ex. 5 and Ex. 6 are personally liable, but the liability of the other defendants must be limited to the extent of the family properties in which they have acquired interest by birth. Subject to this modification in the decree the appeal is dismissed with costs to the plaintiff-respondent. The sale proceeds of the export quota rights which are in deposit in this Court will remain in Court for a period of two months or till further orders are made by the executing Court. If no attachment subsists or made by the plaintiff-respondent within the said time the same 4s to be paid over to the appellants.

Khundkar, J.

10. I agree.


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